March 06, 2014

Adler on Bork & Commercial Speech

Jonathan H. Adler (Case Western Reserve University School of Law) has posted Robert Bork & Commercial Speech (Journal of Law, Economics and Policy, Forthcoming) on SSRN. Here is the abstract:

This symposium essay examines the evolution of Judge Robert Bork’s views on whether commercial speech is constitutionally protected. In a famous 1971 article, Bork argued that only “explicitly political” speech warranted constitutional protection. This position excluded commercial speech from protected speech, along with many other categories of indisputably valuable speech. Judge Bork moderated this position over time, acknowledging that some non-political speech should be protected, even if only due to the difficulty in distinguishing it from core political speech. He also came to embrace robust protection for advertising and other forms of commercial speech, though he did not explain why. This essay explores potential explanations for the change in Judge Bork’s views, including the possibility that the line between commercial and political speech is often unclear, particularly if one does not adopt a state-centered conception of political speech.